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How To Reduce Family Conflict With A Will – Wills/ Intestacy/ Estate Planning


When someone dies, there can be an expectation amongst family
members that they will automatically receive a share in the estate.
Regrettably, that is not always the case. Misunderstandings often
lead to arguments and disputes in the family, which is the last
thing the family of the deceased need at a time of great sadness.
That is why it is sensible to try to reduce family conflict with a
Will.

Making a Will is usually a simple, straightforward process, and
anyone thinking of making a Will should engage the professional
help of their solicitor. Contact our team today to find out more about
how we can assist you.

What to include in your Will

There are many elements to consider when drawing up a Will. One
of the most important elements is deciding who to appoint as your
executor. An executor is the person who will deal with the
administration of your estate. You should think carefully about
whom to appoint. It is important you choose someone who you trust
will follow the instructions in your Will. Also, it is prudent to
have more than one executor to cater for a situation where your
first choice as executor dies before you do, any additional
executors can be joint executors or substitute executors.

Think carefully about how you would like to distribute your
estate. Do you wish to leave specific items or a proportion of your
estate to certain people? If you do, you should think about
creating a legacy or make a bequest for those people. You might
also consider making a donation to charity from your estate. You
can specify all of these in your Will so that there is no doubt
about your intentions. Once you have dealt with specific items,
everything that is left is called residue. You should decide who
should receive the residue of your estate. You can leave this to
one or more people or share it out in any way you want. You do not
have to share it out equally.

Preparing for the unknown

You might also think about what should happen to a share in your
estate should the intended beneficiary die before you do. Depending
on how the title to the family home is structured, you should think
about how you deal with this. If it is in joint names, do you need
to make sure your spouse or partner has a right to remain living in
the house after your death? This is especially important if your
children inherit your share in the house and might want your
partner to move out so they can realise the value in their
inheritance!

If you have young children, the obvious guardian should they die
is the surviving parent. But what happens if you both die? You
should consider appointing a guardian in your Will to ensure your
children are properly looked after until they become adults. In
Scotland, that is when they are 16 years of age.

If you have any specific preference on whether you wish your
remains to be buried or cremated, it can be helpful to express that
in your Will.

This is not an exhaustive list but it does give you an
indication of the things you should think about when you decide to
make a Will.

Be honest with your family about your wishes

When you die, some family members may have made assumptions that
they should share in your estate. But you may have decided
otherwise. This can cause untold grief and endless arguments as
well as threats about challenging the Will.

Once you have decided to make your Will, speak to your family
about it. Explain what you have decided to do and why. It is
important they understand what you have decided to do and why. They
do not have to be happy about it – but at least they will be
aware of the position.It is important to reach an understanding
with your family. If they are not aware of your intentions, in the
high emotional atmosphere following your death tempers can flare
for the slightest of reasons.

On a more positive note, once you have decided to share out your
estate amongst your family members, if you tell them what you are
proposing to do, it might help them with their future financial
planning. Also, depending on your financial position and the
possibility of there being an Inheritance Tax issue, discussions with your
family may lead you to distribute part of your wealth now rather
than waiting until you have passed away.

What happens if my Will is challenged?

In Scotland, there are a limited number of grounds on which a
Will can be challenged. A Will, properly prepared by a solicitor,
it likely to withstand any challenge.

However, when someone wishes to challenge a Will, they must base
that challenge on at least one of the following four grounds:

Incapacity

Those challenging may argue that the person who made the Will
was not mentally sound at the time they drew up the Will. This is a
difficult challenge to sustain if a solicitor was engaged to
prepare the Will. If solicitors have any doubts, they will seek
medical evidence about the testator’s capacity.

Facility and Circumvention

Where those challenging claim that the testator was in a
weakened mental state (but not fully incapacitated) and has been
influenced by someone to that person’s benefit and to the
detriment of those challenging.

Undue influence

To prove this, those challenging the Will need to show that
someone pressurised the testator into drawing up the Will in a
particular way and without that pressure, the Will would have read
differently.

Fraud

In this case there must be evidence of deceit. Common examples
of this are where the Will has been forged or where a person
creates a false identity and passes themselves off as someone else
and inherits a share in the estate as a result.

Originally Published 10 August 2022

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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